THREATS AND RESPONSES: THE DETAINEE; Court to Hear Arguments in Groundbreaking Case of U.S. Citizen Seized With Taliban

Yasser Esam Hamdi, an American-born Saudi Arabian who was captured on the battlefield in Afghanistan, has been in solitary confinement in Virginia for more than six months. Sitting incommunicado in his windowless cell, he has inadvertently emerged as a central figure in a classic legal clash between national security and civil liberties.

The Bush administration considers Mr. Hamdi, 22, to be an ''enemy combatant'' and maintains that it is entirely within its rights to hold war captives, including American-born ones like him, until hostilities cease.

In the case of the war against terrorism, this could be indefinitely. In the administration's view, enemy combatants are threats to the nation's security and can be detained without due process both to pry information from them and to keep them from rejoining the enemy.

Even as American citizens, the administration argues, they have no right to judicial review of their status and may be held without charges, without bail and without access to a lawyer. This gives them fewer rights than ordinary criminal defendants or even foreigners who might face military tribunals.

Several civil liberties groups, a coalition of law professors, a task force from the American Bar Association and at least one federal judge say this is an improper assertion of executive power and have opposed the Bush administration on Mr. Hamdi's behalf. At a minimum, they say, he has a right to a lawyer, and ideally, a court should review his status.

On Monday, a three-judge panel of the Court of Appeals for the Fourth Circuit will hear arguments over the legality of his detention.

Mr. Hamdi's case appears to be the first in modern American jurisprudence in which an American citizen has been indefinitely detained without charges and without access to a lawyer. As such, it is emerging as the test case for whether the courts, and possibly the United States Supreme Court, will allow such detentions.

The answer could well determine whether the United States detains others under similar circumstances, and it could influence how the country fights terrorism.

The only two American citizens being held without charges are Mr. Hamdi and Jose Padilla, the so-called dirty bomb suspect, who is in a military brig in South Carolina. But as the fight against an amorphous worldwide terrorist network stretches into the future, the administration is clearly expecting more American captives and has discussed plans for a military detention camp for them, a sort of stateside Guantánamo Bay.

Because most Americans look back with shame at the internment of Japanese-Americans in World War II, legal experts argue that the Bush administration would surely want the imprimatur of a fresh Supreme Court ruling before creating a military detention camp of Americans considered enemy combatants.

''We have a lot of precedent for how things operate under the laws of war, but each conflict is unique,'' said Lee Casey, an expert in international law and a former legal official in the Reagan and first Bush administrations. ''I think if would be good for everyone if we had guidance from the court.''

Mr. Hamdi, or Mr. Padilla, could provide it. Analysts say the case of Mr. Padilla, who was detained in Chicago, not on a foreign battlefield, is more complex and might provide the court a chance for a broader ruling. But Mr. Hamdi's case is farther along in the pipeline.

Frank W. Dunham Jr., the federal public defender who was assigned to represent Mr. Hamdi but has been blocked by the government from meeting or speaking with him, argued in court papers that if the judges at Monday's hearing sided with the government, they would be endangering ''fundamental constitutional protections guaranteed to every citizen'' and creating ''a vast power to imprison American citizens almost without review by the courts.''

The government calls that argument overblown.

''Hamdi is by no stretch of the imagination an everyday American,'' Paul J. McNulty, the United States attorney in Alexandria, Va., and Paul D. Clement, the deputy solicitor general, wrote in court papers filed last week. ''He surrendered with an enemy unit, armed with a military-style assault rifle, on a foreign battlefield. The Supreme Court long ago held that such an individual, even if he can establish American citizenship by birth or other means, is subject to capture and detention by the military during the conflict.''

Mr. Hamdi was born in Baton Rouge, La., when his father, Esam Fouad Hamdi, a Saudi Arabian citizen and chemical engineer, was working on a petrochemical project with Exxon. When the boy was 3, the family moved back to Saudi Arabia. His father said in a telephone interview that his son, who was studying marketing at King Fahad University of Petroleum and Minerals, left in July 2001 for a combination of relief work and religious training in Pakistan and Afghanistan.

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The Bush administration says Mr. Hamdi became affiliated with a Taliban unit in Afghanistan. It says he received weapons training and remained with the unit after the Sept. 11 attacks and after the United States began bombing the Taliban and Al Qaeda on Oct. 7.

In November, Mr. Hamdi's unit surrendered to the Northern Alliance in Afghanistan. In February he was flown in a cargo plane to prison in Guantánamo Bay. Although he spoke English and told the authorities that he was born in the United States, he remained at Guantánamo until April, when the military confirmed his American citizenship and flew him to the Navy brig in Norfolk, Va., where he remains today. (The military has set aside Guantánamo for non-Americans.)

Actually, Mr. Hamdi's plane from Guantánamo first landed at Dulles International Airport, outside Washington, leading to speculation that he would be charged in federal court in Virginia, where John Walker Lindh, another American captured on the Afghan battlefield, was being prosecuted. Under the law, a citizen returning to the United States is tried in the district where he arrives from abroad.

Shortly after landing at Dulles, the plane took off again for the Navy base at Norfolk. Mr. Dunham, the public defender, suggested that Mr. Hamdi had first landed at Dulles because the Justice Department was expected to charge him and try him in federal court, as it had Mr. Lindh. But, Mr. Dunham said, the plane's shift to Norfolk suggested that the Justice Department could not come up with any charges against him. The Justice Department has not commented on this issue.

Mr. Hamdi was assigned a public defender because of the assumption that criminal charges would be filed against him. Mr. Dunham immediately sought to interview his client to determine if he was indigent and needed a lawyer, but the Pentagon never responded. Since then, Mr. Dunham has represented Mr. Hamdi in numerous legal filings, but the government has intervened to bar him from seeing Mr. Hamdi.

On Monday, Mr. Dunham and the government are to argue in court over whether a Defense Department official's two-page, nine-paragraph statement is sufficient for the government to hold Mr. Hamdi without charges or access to a lawyer.

A lower court judge, Robert G. Doumar of Federal District Court, ruled in August that it was not sufficient. The government is appealing that ruling.

In court papers, the government argued that Mr. Hamdi's detention was lawful because Mr. Hamdi was captured on the battlefield. Mr. McNulty said that the decision to detain him was made by military personnel in Afghanistan and that a court-ordered re-examination of that process ''would be unprecedented and could significantly hamper the nation's defense.'' The military, he said, is under no obligation to provide any more information with respect to captured combatants.

Mr. Dunham said, ''Our position is that Hamdi should have an opportunity to know there's a proceeding going on in his name and to know that he has counsel.''

A coalition of 18 civil liberties groups and 139 law professors is backing him. It says that the executive branch does not have the power to eliminate judicial review of Mr. Hamdi's rights by unilaterally assigning citizens ''to an as-yet-undefined 'enemy combatant' status.''

Also backing Mr. Dunham is a task force of the American Bar Association, which says in a report that it makes no sense that Mr. Hamdi and Mr. Padilla have fewer rights than foreign citizens like Zacarias Moussaoui, whom the authorities have described as the ''20th hijacker,'' and Richard Reid, the airline ''shoe bomber.'' Mr. Reid, Mr. Moussaoui and Mr. Lindh all were charged in open court and had access to counsel.

The critics point to a 1971 law that says ''no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.'' The bar association task force called on Congress to establish clear standards and procedures governing the detention of American citizens.

In response to the task force's report, William J. Haynes II, general counsel for the Defense Department, said the United States Patriot Act passed Sept. 18 by Congress authorized the president ''to use all necessary and appropriate force'' to protect the country against attacks.

''There is no due process or any other legal basis, under either domestic or international law, that entitles enemy combatants to legal counsel,'' Mr. Haynes said.

Correction: October 31, 2002

An article on Monday about a legal clash over national security and civil liberties in the case of Yasser Esam Hamdi, an American-born Saudi captured on the battlefield in Afghanistan, misidentified the law cited by William J. Haynes II, general counsel for the Defense Department, in support of the government's right to detain him without due process. It was the joint resolution of Sept. 18, 2001 (also known as Public Law 107-40), not the United States Patriot Act.

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A version of this article appears in print on October 28, 2002, on Page A00013 of the National edition with the headline: THREATS AND RESPONSES: THE DETAINEE; Court to Hear Arguments in Groundbreaking Case of U.S. Citizen Seized With Taliban. Order Reprints|Today's Paper|Subscribe